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Native Title Native Title Implications for land management Ed Wensing John Sheehan Number 11 April 1997 1 THE AUSTRALIA INSTITUTE Native Title Implications for land management Ed Wensing National Policy Director Royal Australian Planning Institute John Sheehan Chartered Town Planner and Valuer and Native Title Spokesman Australian Institute of Valuers and Land Economists Discussion Paper Number 11 April 1997 ISSN 1322-5421 2 CONTENTS 1. The Emergence of Native Title 1 2. The Special Nature of Indigenous People’s Relationship to Land 4 3. The Definition of Native Title 5 4. Three Processes for the Recognition of Native Title 6 4.1 Original Jurisdiction of the High Court 6 4.2 Determination of Native Title under the Native Title Act 1993 6 4.3 Indigenous Land Use Agreements (ILUA) 7 5. What are the Limits to Recognition of Native Title? 8 6. What is The Role of the Native Title Tribunal? 9 6.1 Claimant Applications 9 6.2 Non-Claimant Applications 10 6.3 Future Acts 11 7. What are Native Title Representative Bodies and what is their role? 12 8. How can the existence of Native Title be ascertained? 13 9. What are the issues for Land Management? 15 9.1 Issues for Land Use Management 15 9.2 Issues for Valuing Native Title 21 10. A basis for Reconciliation 24 11. Conclusions 27 CASES CITED 29 REFERENCES 30 3 PREFACE The native title debate has been one of the most acrimonious and divisive political debates in Australia’s history. The historic task of reconciliation requires a just settlement of claims by Aboriginal and Torres Strait Islander people to land. The authors of this paper conclude that legislated extinguishment would be a severe and enduring blow to reconciliation; negotiation is essential. The purpose of this paper is threefold. Firstly, the paper is an extremely valuable source of information about the known, basic facts on native title. The second purpose is to stimulate informed discussion about the interaction between land use planning and management and native title, and to explore the factors involved in the valuation of land subject to native title. However, the overriding purpose is to counter the extent of misinformation in the wider community on native title generally, and to make an informed contribution to public discussion about the impacts of native title on land tenure systems. Clive Hamilton Executive Director 4 NATIVE TITLE: IMPLICATIONS FOR LAND MANAGEMENT A DISCUSSION PAPER By Ed Wensing and John Sheehan* APRIL 1997 1. THE EMERGENCE OF NATIVE TITLE On 3 June 1992, the High Court of Australia delivered its historic judgement in the case of Mabo v. the State of Queensland (No. 2) (1992) 175 CLR 1, declaring that the common law of Australia recognised native title. The judgement addressed some of the basic premises of our legal system and our society, specifically the legal fiction of terra nullius (a land belonging to no one). In reaching its decision in the Mabo case, the High Court reflected on the history of the dispossession of the indigenous people. Brennan J., with the agreement of Mason CJ., and McHugh J., considered that “the Court could not perpetuate a view of the common law which was unjust, did not respect all Australians as equal before the law, and was out of step with international human rights norms”. In addition, Deane, Gaudron and Toohey JJ. considered the nineteenth century concept of terra nullius to be “repugnant and inconsistent with historical reality” (Attorney-General’s Department 1994:C1). The concept that indigenous property rights pre-exist and survive the establishment of sovereignty in colonised lands has existed in British common law for well over two centuries. Other former British colonies, such as New Zealand, Canada and the USA, have long recognised that two tenure systems exist in their countries: 1. There is the system introduced on colonisation - from which freehold and leasehold titles flow; and 2. A pre-existing indigenous system - from which indigenous property rights derive. In Australia indigenous property rights were not recognised until the 1992 High Court Mabo decision overturned the concept of terra nullius on which Australia’s whole land tenure system had been based. The High Court recognised that indigenous people’s rights to native title had survived and that in accordance with the Racial Discrimination Act 1975, their native title must be treated equally before the law with other titles that flow from the Crown. The High Court said that for reasons of social justice and historical integrity, native title could no longer be denied or removed. The Commonwealth saw the judgement as providing an important opportunity to rebuild, on fair and just foundations, the relationship between our nation and its indigenous people (Lavarch 1994:iii). At the end of 1993 the Commonwealth enacted 5 the Native Title Act to provide for the recognition and protection of native title to the extent recognised by the common law of Australia.. The Act was also introduced in order to: · validate non-Aboriginal titles which may have been invalid due to the operation of the Racial Discrimination Act 1975/native title interaction; · provide for a process for allowing future activities to proceed without undue impact on native title rights; and · provide a process for the determination of compensation for acts which may have impaired or extinguished native title after the commencement of the Racial Discrimination Act 1975. Contrary to popular belief, the Native Title Act 1993 does not create native title rights. Native title rights do not flow from the Crown, and therefore can never be granted through Government legislation, unlike land rights. Section 10 of the Act provides for the recognition and protection of native title as a right recognised by the common law, by providing processes to facilitate its recognition and ensure it receives the same kind of legal protection as other titles. The Act specifically sets up a process for Aboriginal and Torres Strait Islander people to come forward and have their native title recognised and recorded in a way that ensures the existing legal rights and interests of other parties in the same area are also protected. The Act also provides that native title is not able to be extinguished contrary to the Act. As a result of the Mabo decision by the High Court, Australian property law is undergoing fundamental re-thinking. According to Sharp (1996:16), the Mabo judgement is a break in the legal system of land law. “So pervasive is a naturalised notion of English law as the law, so deeply has this conviction permeated common sense, that it becomes a feat of some magnitude to admit the existence of, to comprehend within its own terms, and to place on the same footing, a type of land law which remains embedded in genealogy and is consequently not `free’ to be traded” (Sharp 1996:16). Two systems of law and culture are meeting, and the native title legislation is an attempt to come to grips with the divergent perceptions and attitudes of two cultures to a basic resource - land. The decision by the High Court in Western Australia vs. the Commonwealth confirmed the Commonwealth’s right to enact the Native Title Act 1993. Aborigines, pastoralists, mining and development companies, and local Councils are experiencing to varying degrees, frustration as a result of the uncertainties arising from the concept of native title at common law. In December 1996, the High Court handed down its decision in Wik Peoples vs. State of Queensland and Others. The decision confirmed that native title may exist over land which is or has been subject to a pastoral lease, or possibly some other forms of statutory estates. The Court decided that existing pastoral leases issued prior to 1 January 1994 and the rights granted under them are valid, and that the rights of the pastoralist prevail over native title rights to the extent of any inconsistency. 6 As a result, governments must now recognise the possible existence of native title issues when dealing with land. The process involves the likelihood of the existence of native title, and deciding whether the proposed action will affect any native title. As native title may survive over pastoral leases, the Native Title Act 1993 may: · restrict government acts (eg the grant of permits) in relation to pastoral lease land where such acts affect native title and could be done over freehold land; · require native title holders to be given procedural and compensation rights in relation to most future acts over pastoral lease land (in general, the same procedural and compensation rights that a holder of freehold title would be entitled to); and · require compliance with the `right to negotiate’ provisions of the Native Title Act 1993 for the grant of mining titles over pastoral lease land, or the compulsory acquisition of pastoral lease land in order to make a grant to a third party (Attorney- General’s Department 1997). Since the Wik decision, two issues have received attention: · acts done on or after 1 January 1994 in relation to pastoral lease land which did not comply with the Native Title Act 1993 may turn out to be invalid. For example, the grant of a new pastoral lease or the grant of mining titles over pastoral lease land without following the `right to negotiate’ procedure, · there is a possibility that activities of a pastoralist in the exercise of rights under the lease may now be restricted by the Native Title Act 1993, particularly where such activities are conditioned on further governmental approval. The variation of pastoral lease conditions or the grant of additional permits required by the pastoralist before engaging in non-pastoral activities on leased land, may also be restricted Some commentators have suggested that the above are reasons why pastoralists, some State Governments and others are calling for the extinguishment of native title on land subject to statutory estates.
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